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NAVY | DRB | 2009_Navy | ND0900108
Original file (ND0900108.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20081010
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 (commission of a serious offense)

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive:        NONE              Active: 

Period of Service Under Review:
 Date of Current Enlistment: 19930429      Age at Enlistment:
Period of Enlistment : Years
Date of Discharge: 1995060 2      Highest Rank/Rate: SA
Length of Service:
          Inactive:        Year(s) Month(s) 12 D ay(s)
         Active   Year(s) Month(s) 25 D ay(s)
 Education Level:         AFQT: 57
Evaluation Marks:        Performance: 3.3 ( 2 )     Behavior: 3.4 ( 2 )        OTA: 3.50

Awards and Decorations (per DD 214):     CGSOSR
Periods of UA/CONF:

NJP:
- 19940228 :      Article 92 (Failure to obey a lawful order), 3 specifications
         Specification 1: Wrongfully consuming alcoholic beverages
         Specification 2: Wrongfully smoking in BEQ
         Specification 3: Wrongfully having a visitor in BEQ
         Awarded: Suspended: 1 MONTH FOR 4 DAYS
- 19940310 :      Article 92 (Failure to obey a lawful order)
         Awarded: Dismissed with warning.
- 19940620 :      Article 92 (Failure to obey lawful order or regulation - possess an open container of beer)
         Awarded: Suspended:

- 19950411 :      Article 112a (Drugs - marijuana)
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 19940711 :      For failure to obey order or regulation.
Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:                  Service/Medical Record:          Other Records:  

Related to Post-Service Period:  
         Employment:               Finances:                 Education/Training:     
         Health/Medical Records:           Substance Abuse:                  Criminal Records:       
         Family/Personal Status:           Community Service:                References:     
Additional Statements:
From Applicant:                  From/To Representation:           From/To Congress member:        

Other Documentation:   

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996,
Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, 112a.


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Nondecisional issue – Would like to find a better job.
2. Decisional issue. Punishment was too harsh.
3. Decisional issue. Personal problems and youth and immaturity contributed to his misconduct.
4. Decisional issue. Post Service conduct.
Decision

Date: 20091105         Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey a lawful order, 3 specifications of the charge within three separate NJPs ) and Article 112a (Drugs – marijuana.). Based on the offenses committed, processing for administrative separation was mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with qualified counsel, submit a written statement, and request an a dministrative b oard.

 : (Nondecisional) The Applicant has a young child and cannot find a decent job due to his current discharge characterization. He would like to be able to better provide for his family. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. The Applicant is referred to the Addendum, Employment/Educational Opportunities regarding this issue.
Issue 2: (Decisional) ( ) . The Applicant contends the punishment was too harsh for his offenses. As stated above, during his enlistment he was the subject of 1 retention warning and 4 NJPs for violations of UCMJ Articles 92 and 112a. Violation of Article 112a is considered a serious offense, punishable by a punitive discharge and up to five years imprisonment if adjudged as part of the sentence upon conviction by a special or general court-martial. Despite a service member’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain good order and discipline. Violation of Article 112a meets this standard. The Board determined an upgrade or change would be inappropriate.

 Issue 3: (Decisional) ( ) . The Applicant contends his ability to serve honorably was impacted by his youth and immaturity. Additionally, he claims he had personal problems which mitigated his misconduct. The NDRB determined that the Applicant's youth or claimed im maturity were not mitigating factors in his misconduct. By repeatedly awarding NJP vice preferring charges for court-martial , the Applicant’s command gave him multiple opportunities to change his behavior. Regrettably, the Applicant did not. The evidence of record demonstrates the Applicant was responsible for his conduct and should be held accountable for his actions. Although the Applicant states his misconduct was a result of personal problems, he does not explain these problems nor did he produce documents or witness statements to support his claim.

When a service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s four nonjudicial punishments for violations of UCMJ Articles 92 ( f ailure to obey order/regulation) and 112a (drug use) are serious offenses and fall far short of the conduct expected of a Sailor desiring an Honorable discharge. The Board determined an upgrade or change would be inappropriate.
Issue 4: (Decisional) ( ) . Post -s ervice consideration. The Applicant states it has been 13 years since his discharge and he has lived with shame and failure daily. He has applied for an apprentice program at a federal facility to better provide for his family. Besides the Applicant's statement on the DD Form 293, he failed to provide any additional documentation or evidence on his behalf to support a post-service conduct review. The Applicant's statements alone, without sufficient documentary evidence, are not enough to form a basis for relief. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . The Applicant could have provide d documentation which could include but is not limited to: letters of personal references and verifiable employment record /letter of recommendation from his employers; evidence of an alcohol - free life style (completion of rehab/proof he attended AA meetings); certification of non-involvement with civil authorities, evidence of financial stability (home ownership/home rental history, credit card payments); documentation of community/church service and if married, a marriage certificate. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case- by - case basis to determine if post service conduct mitigates the reason for the characterization of discharge.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found at the time of discharge. Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .
The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge, June 5,1995. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .]



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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